Formalist Textualism and the Cernauskas Problem

In a recent article, Tara Grove distinguishes between what she calls “formalist textualism” and “flexible textualism.” Formalist textualism is really another term for literalism, in which statutory and constitutional language is given its semantic meaning—presumably its meaning at the time of enactment—in its “semantic context.” Grove illustrates the latter by pointing out that the phrase “domestic violence” appears in a statute that also mentions “insurrection,” thus suggesting that domestic violence there refers to acts similar to insurrection rather than to spousal abuse. Flexible textualism, on the other hand, looks beyond the semantic meaning of the text and its semantic context to the text’s purpose and the assumptions and understandings of the enactors and the public at the time of enactment. To put it in terms I prefer, flexible textualists want to know what the text—or more precisely, the legislature whose text it is—is asserting. And what the text is asserting may be different from its semantic meaning